Upton-on-line - Diaspora Edition

Upton-on-line reflects on swearing fealty to
Her Majesty, Queen Elizabeth II as a member of Her
Majesty’s Privy Council.

Doing things by the
book

When upton-on-line was appointed a Privy
Councillor two years ago a surprising number of
(surprisingly ill-informed) friends assumed that he had,
from a standing start, managed to clear all the hurdles in
the judicial hierarchy at one leap and insinuate himself
into the ethereal realms in which New Zealand legal disputes
reach their apotheoses. (U-o-l assumes that’s the plural of
apotheosis!)

Fortunately for the efficient and learned
despatch of cases, no such metamorphosis is possible. Only
years of grinding away as a barrister, high court judge and
then appeal court judge hearing interminable murder trials
or Maori fishing disputes can unlock the doors to the
Judicial Committee of the Privy Council. But an almost
equivalent torture – grinding away for years in caucus
meetings, cabinet committees, cabinet meetings and (when we
still did them) Post Office openings – can lead to
membership of the Privy Council itself.

And it was those
two paths – the high road and the low road in terms of
public esteem, so to speak – that led Sir Kenneth
Keith and yours truly to Buckingham Palace on 14th
November 2001 to do something that people have been doing
since at least the time of the Norman Conquest: swearing
loyalty to the reigning sovereign as newly appointed
Counsellors.

The ceremony is perfectly simple and occurs
as the first item of business at an ordinary monthly Privy
Council meeting at which the Queen meets a small group of
Ministers (led by the President of the Council – currently
Robin Cook) to give her assent to a raft of
regulations, proclamations, and judgements of the Judicial
Committee. Sir Kenneth and upton-on-line were accompanied
by a veritable old hand on the Council, Rt Hon Paul East
QC, who was there to make sure the colonials watched
their Ps & Qs.

The business side of the meeting was pretty
familiar to upton-on-line who has watched two
Governors-General – Dame Cath Tizard and Sir
Michael Hardie Boys – personfully wade through the reams
of legislation and regulations we forced on them as Her
Majesty’s representatives.

But the oath of office was a
little different from the sort of oath taking that
upton-on-line had undertaken in seven different New Zealand
parliaments. Rather than sharing a bible with
alphabetically proximate parliamentary colleagues under the
Presbyterian eye of Dave McGhie (the Clerk of the
House), upton-on-line found himself on one knee clutching a
copy of the New Testament and than, two paces forward on
another rose coloured kneeler, kissing Her Majesty’s
outstretched hand.

This was slightly more familiar
territory for Sir Kenneth whose legal valour has seen him
kneel previously to arise as a knight of the realm. Today’s
title-less NZ honours are apparently proof of the fact that
chivalry has evaporated from this world. Her Majesty’s
gloveless hand is the sole remaining link with that world.
Here are the two oaths taken by new Privy Counsellors.
First the familiar oath of allegiance:

"You do
swear that you will be faithful and bear true allegiance to
HerMajesty Queen Elizabeth the Second, Her Heirs and
Successors according toLaw, so help you
God".

And secondly the (much longer) Privy
Counsellor’s oath which, mercifully, is read by the Clerk
requiring only an “I Do”. ( Upton-on-line leaves it to
readers to consider whether technically a Privy Counsellor
can express republican sentiments without breaching the
oath!):

You do swear by Almighty God
to be a true and faithful Servant unto The Queen’s Majesty
as one of Her Majesty’s Privy Council. You will not know or
understand of any manner of thing to be attempted, done or
spoken against Her Majesty’s Person, Honour, Crown or
Dignity Royal, but you will lett and withstand the same to
the uttermost of your power, and either cause it to be
revealed to Her Majesty Herself, or to such of Her Privy
Council as shall advertise Her Majesty of the same. You
will in all things to be moved, treated and debated in
Council, faithfully and truly declare your Mind and Opinion,
according to your Heart and Conscience; and will keep
secret all matters committed and revealed unto you, or that
shall be treated of secretly in Council. And if any of the
said Treaties or Counsels shall touch any of the Counsellors
you will not reveal it unto him but will keep the same until
such time as, by the consent of Her Majesty or of the
Council, Publication shall be made thereof. You will to
your uttermost bear Faith and Allegiance to the Queen’s
Majesty; and will assist and defend all Jurisdictions,
Pre-eminences, and Authorities, granted to Her Majesty and
annexed to the Crown by Acts of Parliament, or otherwise,
against all Foreign Princes, Persons, Prelates, States, or
Potentates. And generally in all things you will do as a
faithful and true Servant ought to do to Her Majesty, SO
HELP YOU GOD

Oaths taken, the meeting
reverted to its daily business, all dispatched in five
minutes or so. Needless to say, having taken the above
oath, upton-on-line is forsworn not to reveal its substance.
But he can attest that, by tradition, meetings are held
standing up – an ‘innovation’ instituted by Queen
Victoria with any eye to assisting the speedy completion
of business.

The historical backdrop

The
Privy Council goes back about as far as it is possible to go
in British constitutional history. As the council of the
Norman Kings – the curia regis – it was originally
the key organ through which the King ran the kingdom. (The
formula of kings having a council of wise men – a
witangemote - goes back even further into the world of
the Anglo-Saxon kings in the 300 years or so before the
Norman invasion of 1066).

In the first instance it did
everything combining advisory, judicial and executive powers
but that only made sense at a time when there were the most
rudimentary organs of government. Growing complexity meant
the evolution of other organs of government. The result is
that just about every other institution of executive
government in Britain, together with the judicial system,
can trace itself back to a moment when a function dropped
out of the curia or its successor.

Parliament and the courts of law had become clearly
distinct entities from the 14th century onwards, but they
had to put up with interference from the council for three
centuries more. As late as Henry VIII’s reign the
council held (for a brief period) legislative power
alongside that of Parliament. Similarly, it continued to
interfere in judicial matters. It was a committee of the
council that evolved in the late 15th century into the Star
Chamber which was only abolished on the eve of the civil war
in 1641.

Attempts to revive the council’s influence under
the Restoration foundered when Charles II turned
increasingly to a favoured cabal of advisers – a step in
which we find the origins of cabinet government. From the
reign of George I (who, being a German speaker never
attended its meetings) the business of government passed
decisively into the hands of the committee of ministers that
today makes up the cabinet.

The Privy Council in
Contemporary Britain

Notwithstanding the evolution of
roles that has left the Privy Council as a purely formal
forum in which formal executive government is carried out by
the Sovereign (the approval of legislation and regulations
etc) the effluxion of centuries means that a fascinating
cocktail of functions are still performed in the Privy
Council.

In Britain (unlike New Zealand) all cabinet
ministers become members of the Privy Council. They derive
their power directly from the Queen and are personally
responsible to her. She alone can dismiss them –
interestingly, the Prime Minister can invite
Ministers to fall on their swords but if one were to
refuse, only the Queen can insist.

The business of the
Privy Council (some of it coming through formal committees
such as the Judicial Committee) falls under two headings –
prerogative business (matters requiring the Queen’s
approval but not requiring Parliament’s consent) and
non-prerogative business (where Parliament has given the
Sovereign in Council power to approve things).

The
prerogative business encompasses:

1. The dissolution and
prorogation of Parliament (obviously on the advice of the
Prime Minister but not subject to any statutory rule or
procedure)

2. The grant or amendment of Royal Charters to
all sorts of professional institutions, charities and
ancient City livery companies

3. Approving the
recommendations of the Judicial Committee (which includes
appeals from New Zealand)

4. Approving various matters
relating to the Anglican Church

5. Approving the names of
the High Sheriffs – the Crown’s agents at County level. The
institution of sheriffs is as old as the Privy Council
itself going back to the Saxon era. The process of
appointment is marvellously eccentric and involves the Queen
pricking the chosen names with a bodkin – a large needle –
when they are presented to her on a scroll held for her by
an apparently nervous Clerk of the Council who has to make
sure the needle hits the right target. (Only the British
could keep this going with a straight face, explaining –
with questionable historical probity – that it dates back to
an occasion when Elizabeth I was asked to approve the names
when she was doing a spot of embroidery in the rose garden
at Richmond Palace. Having no pen to hand she used her
needle.)

6. Approving statutes and appeals from a small
number of ancient universities, most notably Oxford and
Cambridge.

7. Most deliciously, approving legislation from
the Channel Islands. These are all that is left of the
Dukedom of Normandy, the other half of the early mediaeval
empire that King John successfully lost in the early years
of the 13th century. For the purposes of the Channel
Islands, Queen Elizabeth presides as the Duke of
Normandy – a little reminder that for 150 years after
the Norman Conquest, England and half of France were part of
a multi-national empire.

Non-prerogative business is, by
contrast, largely of the unromantic variety being secondary
legislation (regulations) made under powers granted by Act
of Parliament. One exception (of a literally romantic
nature) is the issuance of declarations of consent to
marriage in respect of members of the Royal Family under the
1772 Royal Marriages Act.

The New Zealand
situation

In New Zealand, the Queen in right of
New Zealand (as she is technically styled) exercises her
powers through her Governor-General whose riding
instructions are found in something called the Letters
Patent. They encapsulate what is left of the prerogative
powers in New Zealand – in other words, those things done by
the Crown that aren’t traced to some statutory authority.
There aren’t many – exercising the prerogative of mercy is
about the only one left.

Most importantly, the Letters
Patent establish the basis of Executive Government which is
called the Executive Council. It meets most weeks
under the chairmanship of the Governor-General and with a
minimum of two ministers present. They also provide for the
appointment of Ministers (who hold warrants).

But
despite some similarity of functions, the Executive Council
has no connection with the Privy Council. That remains a
specifically British beast and appointment to it is (at
least for politicians) effectively an honour which carries
with it the Rt Hon title. (Obviously, it’s more
than an honour for judges since, by becoming members of the
Judicial Committee, they actually have to do some work!) The
only time the Privy Council has ever sat in New Zealand is
for the swearing in of members – something that happens
occasionally during one of the Queen’s visits to New
Zealand. With the demise of the British honours system in
New Zealand under the Bolger government, appointment to the
(British) Privy Council is, in effect, the last remaining
‘imperial’ honour in New Zealand.

Anyone wanting a quick
guide to New Zealand’s constitutional arrangements (and how
they link to the Crown) should visit
www.dpmc.govt.nz/cabinet If you click on the Cabinet
Manual heading, you will find a nice crisp summary by
upton-on-line’s fellow oath taker, Sir Kenneth Keith!

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